international law on minorities’ right to self-identify · discussion 18 1. the right to ... udhr...

Brie�ng Paper

International Law on Minorities’ Right to

Self-Identify

About the Authors

Destination Justice is a social change organisation, as such we believe we are changemakers and together, we can end injustice. To that end, we set ideas in motion, we provide tools and we take action if necessary.

Doreen Chen is a co-founder and Director of Destination Justice and a lawyer admitted to practice in Australia and Cambodia. She is currently Senior Legal Consultant to the defence team for Nuon Chea, the senior-surviving leader of the Khmer Rouge. Doreen previously worked for the O�ce of the High Commissioner for Human Rights, coordinated the development of the �rst-ever Annotated Cambodian Code of Criminal Procedure, practiced as a commercial lawyer for an international �rm, and served in leadership positions for various human rights organisations. She holds an LLM with honours from Columbia Law School specialising in international criminal, humanitarian and human rights law, and has lectured in these subjects at universities in France and Cambodia. She also holds �rst class honours degrees in Law and Government and International Relations from the University of Sydney.

Rachel LaFortune is seconded to Destination Justice as part of Columbia Law School’s Human Rights Internship Program. She is about to begin her second year at Columbia Law School where she is pursuing her JD with a focus on international human rights law. Previously, Rachel worked for an immigration advocacy group in the United States. She holds a BA with honours from Wheaton College (Massachusetts).

Photo Credits

On the Cover Page: ‘ROHINGYA: Hashimiah Orphans Madrasah at Pasar borong Selayang’ by

Firdaus Latif, on Flickr.

< https://www.�ickr.com/photos/�rdausjongket/8093615073/in/photostream/ >.

International Law on Minorities’ Right to Self-Identify | © Destination Justice 2016

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http://destinationjustice.org/about-us/leadership/doreen-chen/

https://www.flickr.com/photos/firdausjongket/8093615073/in/photostream/

Table of Contents

List of Terms 4

Abbreviations 6

Introduction 7

A Framework on International Human Rights Law 10

Question Presented 18

Brief Answer 18

Discussion 18

1. The Right to Non-Discrimination 18

2. The Right to Self-Determination of Peoples 19

3. Minority Rights Apply to Non-Citizens, with the Exception of Political Rights. 20

4. Protection for the Existence of Minorities Includes and Requires Respect and Protection for their Religions, Cultural, and Linguistic Characters

20

5. Racial Discrimination and the Rights of Minorities to Self-Identify 21

Further Information 23

Annex: International Jurisprudence 24


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List of Terms

Accede/Accession - ‘Accession’ is an act by which a State signi�es its agreement to be legally

bound by the terms of a particular treaty. It has the same legal e�ect as rati�cation, but is not

preceded by an act of signature. The formal procedure for accession varies according to the

national legislative requirements of the State. To accede to a human rights treaty, the appropriate

national organ of a State—Parliament, Senate, the Crown, Head of State or Government, or a

combination of these—follows its domestic approval procedures and makes a formal decision to

be a party to the treaty. Then, the instrument of accession, a formal sealed letter referring to the

decision and signed by the State’s responsible authority, is prepared and deposited with the

United Nations Secretary-General in New York.

Adoption - ‘Adoption’ is the formal act by which the form and content of a proposed treaty text are

established. Treaties negotiated within an international organisation like the United Nations are

usually adopted by a resolution of a representative organ of the organisation whose membership

more or less corresponds to the potential participation in the treaty in question (the United

Nations General Assembly, for example).

Charter - The term ‘charter’ is used for particularly formal and solemn instruments, such as the

treaty founding an international organisation like the United Nations (‘The Charter of the United

Nations’).

Convention - A ‘convention’ is a formal agreement between States. The generic term ‘convention’

is thus synonymous with the generic term ‘treaty’. Conventions are normally open for participation

by the international community as a whole, or by a large number of States. Usually the

instruments negotiated under the auspices of an international organisation are entitled

conventions

Declaration - The term ‘declaration’ is used for various international instruments. International

human rights declarations are not legally binding; the term is often deliberately chosen to indicate

that the parties do not intend to create binding obligations but merely want to declare certain

aspirations. However, while the 1948 Universal Declaration of Human Rights for example was not

originally intended to have binding force, its provisions have since gained binding character as

customary law.

Entry into Force - A treaty does not enter into force when it is adopted. Typically, the provisions of

the treaty determine the date on which the treaty enters into force, often at a speci�ed time

following its rati�cation or accession by a �xed number of states.

Optional Protocol - The term ‘protocol’ is used for an additional legal instrument that

complements and adds to a treaty. A protocol may be on any topic relevant to the original treaty

and is used either to further address something in the original treaty, address a new or emerging

concern or add a procedure for the operation and enforcement of the treaty—such as adding an

individual complaints procedure. A protocol is ‘optional’ because it is not automatically binding on

States that have already rati�ed the original treaty; States must independently ratify or accede to a

protocol.


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Ratify/Rati�cation - ‘Rati�cation’ is an act by which a State signi�es an agreement to be legally

bound by the terms of a particular treaty. To ratify a treaty, the State �rst signs it and then ful�ls its

own national legislative requirements. Once the appropriate national organ of the

country—Parliament, Senate, the Crown, Head of State or Government, or a combination of

these—follows domestic constitutional procedures and makes a formal decision to be a party to

the treaty. The instrument of rati�cation, a formal sealed letter referring to the decision and

signed by the State’s responsible authority, is then prepared and deposited with the United

Nations Secretary-General in New York.

Signature - ‘Signature’ of a treaty is an act by which a State provides a preliminary endorsement

of the instrument. Signing does not create a binding legal obligation but does demonstrate the

State’s intent to examine the treaty domestically and consider ratifying it. While signing does not

commit a State to rati�cation, it does oblige the State to refrain from acts that would defeat or

undermine the treaty’s objective and purpose.

State Party - A ‘State Party’ to a treaty is a country that has rati�ed or acceded to that particular

treaty, and is therefore legally bound by the provisions in the instrument.

Treaty - A ‘treaty’ is a formally concluded and rati�ed agreement between States. The term is

used generically to refer to instruments binding at international law, concluded between

international entities (States or organisations). Under the Vienna Conventions on the Law of

Treaties, a treaty must be (1) a binding instrument, which means that the contracting parties

intended to create legal rights and duties; (2) concluded by states or international organisations

with treaty-making power; (3) governed by international law and (4) in writing.

These de�nitions are taken from UNICEF’s ‘Introduction to the Rights of the Child’

( http://www.unicef.org/french/crc/�les/De�nitions.pdf ).


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http://www.unicef.org/french/crc/files/Definitions.pdf

Abbreviations

CEDAW - Convention on the Elimination of all Forms of Discrimination Against Women

CAT - Convention Against Torture

CRC - Convention on the Rights of the Child

HRC - Human Rights Council

ICCPR - International Covenant on Civil and Political Rights

ICERD - International Covenant on the Elimination of All Forms of Racial Discrimination

ICESCR - International Covenant on Economic, Social and Cultural Rights

NGO - Non-governmental Organisation

OHCHR - O�ce of the High Commissioner for Human Rights

UDHR - Universal Declaration of Human Rights

UN - United Nations

UNICEF - UN Children’s Fund


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Introduction

The Rohingya are a predominantly Muslim minority concentrated in Rakhine State (also known as

Arkan State) in Myanmar. According to the late Gordon Luce and Than Tun, leading historians of

pre-colonial Burma, stone inscriptions dating back to 1400 AD establish the historical presence of

the Rohingya people in what is today western Burma. This presence was also con�rmed by an 1

early ethno-linguistic survey published by a British East India Company employee in 1795. During 2

the British colonial period, however, o�cial census records grouped di�erent ethnic communities

under broad categories. As a result, the Rohingya were grouped together with other ethnic

groups of the Islamic faith, a fact that anti-Rohingya nationalists have used as evidence that the

Rohingya are colonial era additions: seasonal and/or migrant labourers who arrived in the State

during British colonial rule, from 1825 to 1947, and remained behind after the British left. In the

immediate post-independence period, the Rohingya ethnic identity resurfaced as the successive

Burmese governments, both the civilian and military governments of Prime Minister U Nu and

General Ne Win, extended o�cial recognition to the Rohingya as one of the integral ethnic

communities of the Union of Burma.

Despite this recognition, and in the face of the irrefutable o�cial and historical evidence

supporting the Rohingya's claim to being centuries-long residents of western Burma (what is

today the border state of Rakhine), the current government of Myanmar and Buddhist nationalists

continue to deny the validity of the Rohingya identity. Instead, they have dubbed the Rohingya

illegal Bengali immigrants, promoting the view that Rohingya illegally migrated to Burma during 3

British colonial rule in order to deny the Rohingya identity recognition and full citizenship rights. 4

Under Myanmar’s 1974 Constitution, the Rohingya do not qualify as indigenous peoples, and the

Citizenship Act of 1982 restricts citizenship to those who either belong to one of 135 ‘national

races’ (of which the Rohingya are not one), or to those who settled in the country before 1823,

something that is di�cult to prove due to lack of documentation. As a result, the Rohingya have

been rendered stateless and face signi�cant discrimination. Just four years after the outbreak of

sectarian violence in 2012, around 120,000 Rohingya are internally displaced, and thousands 5

more have �ed the country. Meanwhile, the climate of intolerance increases, with continued 6

1 G. H. Luce, Phases of Pre-Pagan Burma: Languages and History, Volume I (1985), p. x, 95. 2 Dr. Azeem Ibrahim, The Rohingyas: Inside Myanmar’s Hidden Genocide (Hurst Publishers, 2016), p 24-25. 3 Roseanne Gerin, ‘Aung San Suu Kyi, John Kerry Discuss Myanmar’s Rohingya Issue and Sanctions’ (Radio Free Asia, 23 May 2016) < http://www.rfa.org/english/news/myanmar/aung-san-suu-kyi-john-kerry-discuss-myanmars-rohingya-issue-and-sanctions-05232016162223.html > accessed 25 July 2016. 4 ‘Malaysia/Burma: Living in Limbo: Burmese Rohingyas in Malaysia’ (Human Rights Watch, August 2000) < https://www.hrw.org/reports/2000/malaysia/maybr008-01.htm#P244_39095 > accessed 3 August 2016. 5 ‘Zeid urges action to address serious rights violations against Rohingya and other minorities in Myanmar’ (OHCHR, 20 June 2016) < http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=20137&LangID=E > accessed 25 july 2016. 6 David Scott Mathieson, ‘Dispatches: Burma’s Rohingya Muslims in Desperate Straits’ (Human Rights Watch, 26 April 2016) < https://www.hrw.org/news/2016/04/26/dispatches-burmas-rohingya-muslims-desperate-straits > accessed 25 July 2016.


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http://www.rfa.org/english/news/myanmar/aung-san-suu-kyi-john-kerry-discuss-myanmars-rohingya-issue-and-sanctions-05232016162223.html

http://www.rfa.org/english/news/myanmar/aung-san-suu-kyi-john-kerry-discuss-myanmars-rohingya-issue-and-sanctions-05232016162223.html

https://www.hrw.org/reports/2000/malaysia/maybr008-01.htm#P244_39095

http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=20137&LangID=E

https://www.hrw.org/news/2016/04/26/dispatches-burmas-rohingya-muslims-desperate-straits

impunity for growing grassroots ultra-nationalist movements that spread messages of hate and

encourage violence against Rohingya. 7

There has been very little government action to address these human rights violations, and Aung 8

San Suu Kyi’s government continues to avoid recognising the Rohingya minority identity. In 2013, 9

the UN Special Rapporteur on the human rights situation in Myanmar, Tomás Ojea Quintana,

indicated that State actors may have been directly involved in acts of violence against the

Rohingya or at least implicitly supported the violence. 10

UN High Commissioner for Human Rights, Prince Zeid Ra’ad Al Hussein issued a statement on 20

July 2016 calling for the government of Myanmar to address the discrimination and human rights

violations against the Rohingya. He also released a new report, as requested by the UN HRC in 11

July 2015, which documents human rights violations against the Rohingya. The report notes that

Rohingya su�er from arbitrary deprivation of nationality, severe restrictions on freedom of

movement, threats to life and security, denial of rights to health and education, forced labour,

sexual violence, and limitations on political rights, among other violations. 12

The report also indicates that the pattern of human rights violations against the Rohingya could

amount to crimes against humanity. Prince Zeid remarked: 13

The new Government has inherited a situation where laws and policies are in place that

are designed to deny fundamental rights to minorities, and where impunity for serious

violations against such communities has encouraged further violence against them. [...] It

will not be easy to reverse such entrenched discrimination. This will be a challenging

process that requires resolve, resources and time. But it must be a top priority to halt

ongoing violations and prevent further ones taking place against Myanmar’s ethnic and

religious minorities. 14

7 See ‘Sticks and Stones: Speech Narratives and Facilitators in Myanmar’ (C4ADS, 5 February 2016) < http://www.burmalibrary.org/docs22/Sticks+and+Stones.pdf > accessed 25 July 2016. 8 Jonah Fisher, ‘Aung San Suu Kyi: Where are you?’ (BBC, 2 June 2015) < http://www.bbc.com/news/world-asia-32974061 > accessed 25 July 2016. 9 Reuters, ‘Aung San Suu Kyi tells UN that the term “Rohingya” will be avoided’ (The Guardian, 21 June 2016) < https://www.theguardian.com/world/2016/jun/21/aung-san-suu-kyi-tells-un-that-the-term-rohingya-will-be-avoided > accessed 25 July 2016. 10 ‘Religious violence in Myanmar, the consequences of Government inaction in tackling prejudice and discrimination – UN expert’ (OHCHR, 28 March 2013) < http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=13205&LangID=E%27LangID=E#sthash.qcqh1F8I.dpuf > accessed 25 July 2016. 11 ‘Zeid urges action to address serious rights violations against Rohingya and other minorities in Myanmar’ (OHCHR, 20 June 2016) < http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=20137&LangID=E > accessed 25 July 2016. 12 UN Human Rights Council, Situation of human rights of Rohingya Muslims and other minorities in Myanmar , 20 June 2016, A/HRC/32/18 < http://www.ohchr.org/EN/HRBodies/HRC/RegularSessions/Session32/Pages/ListReports.aspx#sthash.2UYwMgBJ.dpuf > accessed 25 July 2016. 13 UN Human Rights Council, Situation of human rights of Rohingya Muslims and other minorities in Myanmar , 20 June 2016, A/HRC/32/18, para 55 < http://www.ohchr.org/EN/HRBodies/HRC/RegularSessions/Session32/Pages/ListReports.aspx#sthash.2UYwMgBJ.dpuf > accessed 25 July 2016. 14 ‘Zeid urges action to address serious rights violations against Rohingya and other minorities in Myanmar’ (OHCHR, 20 June 2016)


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http://www.burmalibrary.org/docs22/Sticks+and+Stones.pdf

http://www.bbc.com/news/world-asia-32974061

https://www.theguardian.com/world/2016/jun/21/aung-san-suu-kyi-tells-un-that-the-term-rohingya-will-be-avoided

https://www.theguardian.com/world/2016/jun/21/aung-san-suu-kyi-tells-un-that-the-term-rohingya-will-be-avoided

http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=13205&LangID=E%27LangID=E#sthash.qcqh1F8I.dpuf

http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=13205&LangID=E%27LangID=E#sthash.qcqh1F8I.dpuf


http://www.ohchr.org/EN/HRBodies/HRC/RegularSessions/Session32/Pages/ListReports.aspx#sthash.2UYwMgBJ.dpuf




Indeed, many of the reported violations contravene Myanmar’s international obligations as

determined by core international human rights treaties that will be discussed in this brief.

Currently, as a party to the Convention on the Rights of the Child, the Convention on the

Elimination of All Forms of Discrimination against Women, and other key international treaties, 15

Myanmar is under an obligation to guarantee such protections as are enshrined within these

treaties. Myanmar is also a signatory to the International Covenant on Economic, Social and

Cultural Rights, and is therefore obliged to refrain from actions contrary to its object or purpose.

The obligations under these treaties are strengthened and complemented by customary

international law on human rights, which is re�ected in the Universal Declaration of Human Rights.

While Myanmar is not legally bound by some of the other core human rights treaties mentioned in

this brief, most notably the International Covenant on Civil and Political Rights, the International

Convention on the Elimination of All Forms of Racial Discrimination and the Convention Against

Torture, they still o�er persuasive power in terms of how they embody the growing consensus

within the international community regarding State's human rights obligations.

The ICCPR in particular, with 168 parties and 74 signatories, carries strong international

acceptance. Further, several of its rights re�ect customary international law. As such, the HRC

has stated that States may not reserve any of the following rights:

[...] to engage in slavery, to torture, to subject persons to cruel, inhuman or degrading

treatment or punishment, to arbitrarily deprive persons of their lives, to arbitrarily arrest

and detain persons, to deny freedom of thought, conscience and religion, to presume a

person guilty unless he proves his innocence, to execute pregnant women or children, to

permit the advocacy of national, racial or religious hatred, to deny to persons of

marriageable age the right to marry, or to deny to minorities the right to enjoy their own

culture, profess their own religion, or use their own language. 16

Any State interference with corresponding individual rights, such as the right of minorities to enjoy

their own culture, should be deemed suspect.

The following Brie�ng Paper will �rst set out a framework on international human rights law,

looking speci�cally at the core human rights treaties most directly related to minority rights

protection. It will then address the question of how the right of minorities’ to self-identify on the

basis of their national, ethnic, religious and linguistic characteristics relates to the obligation of

States to ensure non-discrimination against individuals and groups. It will also address how this

obligation operates for individuals who, like the Rohingya, are denied citizenship rights.

< http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=20137&LangID=E > accessed 25 July 2016. 15 Including the Convention on the Prevention and Punishment of the Crime of Genocide, the Convention on the Rights of Persons with Disabilities, the Optional Protocol of the CRC on the sale of children, and the Protocol to Prevent, Suppress, and Punish Tra�cking in Persons, especially Women and Children. 16 HRC, General Comment No. 24: Issues Relating to Reservations Made upon Rati�cation or Accession to the Covenant or the Optional Protocols thereto, or in Relation to Declarations under Article 41 of the Covenant (1994), para 8.


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A Framework on International Human Rights Law

After the Second World War, the international community resolved to prevent the occurrence of

such large-scale atrocities as the Holocaust by establishing international protections for individual

rights. In particular, the ability of national governments to target speci�c minority groups proved

that further protection was needed. The UDHR, adopted by the UN General Assembly in

December 1948, was the �rst step toward this goal of international-level protection. In its �rst

article it held, ‘All human beings are born free and equal in dignity and rights.’ However, more was

needed for this statement to have binding force. It was not until 1976 that the ICCPR and the

ICESCR came into force, providing a mechanism for practical implementation and monitoring of

human rights responsibilities.

Today there are six core, legally binding international human rights treaties within the UN system

that have particular signi�cance for protecting minority rights. In addition to the ICCPR and the

ICESCR there are the International Convention on the Elimination of All Forms of Racial

Discrimination (ICERD), the Convention on the Rights of the Child (CRC), the Convention on the

Elimination of All Forms of Discrimination Against Women (CEDAW), and the Convention Against

Torture (CAT). The ability to invoke these treaties to redress rights is limited to those countries

who have become States Parties. To learn the status of rati�cation for a country, visit the OHCHR

website ( http://indicators.ohchr.org ). If your country is not a party to a relevant treaty, it is not

possible to formally invoke the treaty's procedures. However, there are other avenues for seeking

redress, including Charter-based procedures created by the UN Commission on Human Rights

and other bodies, which can be reviewed in Pamphlet No. 3 of the UN Guide for Minorities

( http://www.ohchr.org/Documents/Publications/GuideMinorities3en.pdf ).

Each of the core human rights treaties established a committee to monitor the implementation of

treaty provisions by States Parties. These committees are composed of international human

rights experts who serve four-year terms. The members are elected by the States Parties but

serve in a personal capacity, not as representatives of their governments, and they generally do

not participate in reviews of their own nations’ governments.

The committees monitor States Parties’ treaty obligations through national reports and individual

complaints. The former are submitted periodically (every two to �ve years) and are a legal

obligation for States Parties. The reports detail what steps a State Party has taken to meet its

treaty obligations. Individual complaints, known as ‘communications,’ o�er a way for individuals to

seek redress if their rights under a particular treaty are violated. The ICCPR, the ICERD, the

CEDAW and the CAT all have mechanisms that enable individuals to send a formal complaint, but

again, States Parties must allow for this optional provision.

At the end of a review period, each Committee issues an evaluation in the form of public

observations that recognise points of progress, but also highlight areas of concern and provide

relevant recommendations. These observations and recommendations are not legally binding

but carry signi�cant weight. In the case of individual complaints, if the HRC upholds the

allegations then the State Party is obliged to take action to remedy the situation.


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http://indicators.ohchr.org/

http://www.ohchr.org/Documents/Publications/GuideMinorities3en.pdf

The reporting system does face a few obstacles that prevent an optimal dialogue and

enforcement of rights. Some States Parties do not submit adequate information to allow for a full

and accurate review, other times there can be delays in the review process, and sometimes States

Parties fail to follow through on a committee’s recommendations or concerns. Some of these

issues could be improved with greater publicity around the treaty reporting process. Concerned

parties may also be able to submit additional reports or seek to participate in the drafting of the

national report. Both the Committee on the Rights of the Child and the Committee on Economic,

Social and Cultural Rights allow for more active NGO participation. 17

Universal Declaration of Human Rights (UDHR)

Today, the UDHR is the most important international statement de�ning human rights. Containing

30 articles, it sets out 28 di�erent rights that apply to everyone, in all countries around the world.

These rights include the right not to be discriminated against for reasons such as race or religion,

the right to have a nationality and to not have one’s nationality taken away, the right to vote and to

participate in politics (for example, by serving as an elected o�cial or representative), the right to

freedom of movement within one’s country, and to leave and return freely to one’s country, the

right to asylum in other countries, the right to enjoy freedom of religion, the right to work and to

free choice of employment, the right to marry without limitations based on race, nationality, or

religion, the right to education, and the right to an adequate standard of living (which includes

food, medical care, and housing).

While the UDHR is only a declaration, and therefore technically only a statement of belief or

intent, it has become international law because it has taken on the status of customary

international law. This is to say that the UDHR’s principles have been adopted by a su�cient

number of countries who treat these principles as legal obligations, rendering these principles as

binding regardless of whether a nation has o�cially recognised the UDHR as a binding obligation.

International Covenant on Civil and Political Rights (ICCPR)

The ICCPR protects traditional human rights, often referred to as civil rights, which include the

right to life, freedom of speech, religion and voting.

The ICCPR also speci�cally addresses minority rights. Article 27 recognises an individual right for

members of ethnic, religious or linguistic minorities to engage in the cultural activities

characteristic of their minority cultures. This right does not include any political rights, such as

political autonomy, in an e�ort to preserve the integrity and sovereignty of States. This distinction

sets minority rights apart from the right to self-determination (article 1).

Article 1 establishes the right of ‘all peoples to self-determination. This right includes the right to

determine political status and to freely pursue economic, social and cultural development.

‘Peoples’ may also freely dispose of their natural wealth and resources.

17 See, < www.defence-for-children.org > for the CRC Committee details and < www.cohre.org > for CESCR Committee information.


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http://www.defence-for-children.org/

http://www.cohre.org/

Pamphlet No.4 of the UN Guide for Minorities outlines other rights enshrined in the ICCPR that are

relevant to minority rights protection: 18

Article 2.1 guarantees that the rights protected by the Covenant apply to all individuals,

without distinction of any kind, such as race, colour, sex, language, religion, political or

other opinion, national or social origin, property, birth or other status. This entitlement

applies to all individuals within the territory or under the jurisdiction of a State (see also

General Comment No. 18).

Article 3 provides for the equal enjoyment of all rights for men and women (see also


Article 12 guarantees free movement and choice of residence for everyone lawfully within

the territory of a State, as well as the right to leave any country and to enter one's own

country (see also General Comment No. 27).

Article 17 protects against interference with a person's privacy, family, home, or

correspondence, as well as against attacks on honor and reputation.

Article 18 is essential to minorities and protects freedom of thought, conscience, and

religion. Minorities may manifest their religion in public or private through worship,

observance, practice, and teaching, and parents are free to ensure that the religious and

moral education of their children conforms to their own convictions (see also General

Comment No. 22).

Article 19 protects freedom of opinion and expression. This is basic to the ability of

minorities to communicate in their own language and includes ‘freedom to seek, receive

and impart information and ideas of all kinds, regardless of frontiers, either orally, in

writing or in print, in the form of art, or through any other media.’ As is true for many other

rights, freedom of expression may be legitimately restricted by law, but only where such

restrictions are necessary to protect the rights of others or to protect national security,

public order, public health, or public morality.

Article 20 requires governments to prohibit by law any advocacy of national, racial, or

religious hatred that constitutes incitement to discrimination, hostility, or violence (see also


Article 22 guarantees freedom of association. While most of its provisions concern trade

unions, this article also protects the right to form and participate in minority educational,

cultural, political, and other organisations.

Article 25 sets forth the rights and opportunities of citizens to participate in the conduct of

public a�airs, to vote and be elected and to have access to public service (see also


Article 26 is a general non-discrimination clause that guarantees equality before the law

and equal protection for all. This right does not preclude the State from making

18 ‘Minorities and the United Nations: Human Rights Treaty Bodies and Complaint Mechanisms’ (OHCHR) < http://www.ohchr.org/Documents/Publications/GuideMinorities4en.pdf > accessed 25 July 2016.


Pg 12 of 25


reasonable distinctions among categories of people, such as the need to speak the o�cial

language under certain circumstances, but it prohibits any unreasonable distinction based

on one's status as a member of a minority group (see also General Comment No. 18).

International Covenant on Economic, Social and Cultural Rights (ICESCR)

The ICESCR focuses on food, education, health and shelter, among other basic rights. While the

ICESCR allows States Parties a certain measure of �exibility in how to protect these rights,

acknowledging di�erences in resource capacity, it nonetheless imposes a binding obligation to

yield results within a reasonable timeframe. Article 2(1) of the Covenant acknowledges that

di�erent countries have di�erent capacities to provide services, but holds that each State Party

must ‘take steps [...] to the maximum of its available resources, with a view to achieving

progressively the full realization of the rights recognized in the present Covenant, including

particularly the adoption of legislative measures.’

The breadth of meaning allowed under ‘progressive realization’ does not include total inaction.

Concrete steps must be taken, and any deliberately retrogressive measures must have su�cient 19

justi�cation. At a minimum, States Parties are obliged to ensure that essential foodstu�s, 20

essential primary health care, basic shelter and housing, and the most basic forms of education

are available. 21

Article 2(2) of the ICESCR a�rms that rights must be exercised without discrimination of any kind.

This non-discrimination provision must be applied immediately, not progressively. 22

Pamphlet No.4 of the UN Guide for Minorities outlines rights enshrined in the ICESCR that are


Article 3 requires States to ensure the equal enjoyment of all rights for men and women.

Articles 6 and 7 concern the right to work, including the opportunity to gain one's living by

work freely chosen, as well as the right to enjoy just and favorable conditions of work.

Article 11 sets forth the right to an adequate standard of living, including adequate food,

clothing, housing, and the continuous improvement of living conditions.

Article 12 requires States to ensure the highest attainable standard of physical and mental

health, including an obligation to reduce infant mortality and to promote the healthy

development of the child.

Articles 13 and 14 set forth the right of everyone to education, including a provision that

primary education must be compulsory and free for all. Of particular interest to minorities

is the liberty of ‘individuals and bodies’ to establish and direct educational institutions, as

19 CESCR, General Comment 3: The Nature of States Parties' Obligations (1990), para 2. 20 CESCR, General Comment 3: The Nature of States Parties' Obligations (1990), para 9. 21 CESCR, General Comment 3: The Nature of States Parties' Obligations (1990), para 10. 22 CESCR, General Comment No. 20: Non-discrimination in economic, social and cultural rights (2009), paras 7 and 8. 23 ‘Minorities and the United Nations: Human Rights Treaty Bodies and Complaint Mechanisms’ (OHCHR) < http://www.ohchr.org/Documents/Publications/GuideMinorities4en.pdf > accessed 25 July 2016.


Pg 13 of 25


long as these institutions conform to whatever minimum standards may be established by

the State.

Article 15 states that everyone has the right to take part in cultural life and to have his/her

intellectual property protected.

International Convention on the Elimination of All Forms of Racial Discrimination (ICERD)

ICERD speci�es a number of rights that must be guaranteed without racial discrimination. These

rights parallel those listed in other international human rights treaties. They include equal

treatment before judicial bodies, the right to participate in public a�airs and have equal access to

public service, freedom of movement and residence, freedom of opinion and expression, and the

right of access to any place or service intended for general public use.

Racial discrimination, according to article 1 of the Convention, is ‘any distinction, exclusion,

restriction or preference based on race, color, descent, or national origin which has the purpose or

e�ect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of

human rights and fundamental freedom in the political, economic, social, cultural or any other

�eld of public life.’

Convention on the Rights of the Child (CRC)

The CRC is focused on protecting the rights of those under the age of 18. Pamphlet No.4 of the

UN Guide for Minorities outlines the rights enshrined in the CRC that are relevant to minority rights

protection: 24

Article 2 provides that the rights in the Convention must be guaranteed without

discrimination on the basis of, among other qualities, race, colour, language, religion, or

national or ethnic origin.

Article 3 sets forth the basic principle of the Convention, which is that the best interests of

the child should be the primary consideration in all actions concerning children.

Article 6 recognises the child's right to life, survival and development.

Article 7 requires that children be registered immediately after birth and have the right to a

name and nationality.

Article 12 recognises respect for the views of the child.

Article 17 encourages the mass media to cooperate in producing and disseminating

material from diverse cultural sources and ‘to have particular regard to the linguistic

needs of the child who belongs to a minority group’.

Article 20 provides that due regard should be paid to a child's ethnic, religious, cultural,

and linguistic background, when it is necessary to place the child in a home other than

that of his/her family.

Article 24 recognises the child's right to health.

24 ‘Minorities and the United Nations: Human Rights Treaty Bodies and Complaint Mechanisms’ (OHCHR) < http://www.ohchr.org/Documents/Publications/GuideMinorities4en.pdf > accessed 25 July 2016.


Pg 14 of 25


Article 28 provides for the child's right to education, including access to primary

education.

Article 29 re�ects the fundamental purpose of education, and states, among other things,

that a child's education shall be directed to developing respect for: human rights and

fundamental freedoms; his/her own cultural identity, language, and values; the national

values of the country in which the child lives and from which he or she may have

originated; and the values of other civilizations (see also General Comment 1).

Article 30 essentially extends to children the provisions of article 27 of the ICCPR

regarding the right to enjoy one's culture, practice one's religion, and use one's own

language.

Article 31 calls upon States to respect and promote a child's right to participate in cultural

and artistic life.

Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW)

The CEDAW emphasises women’s rights to equal treatment under the law; equality in education,

political participation, employment, health, and the economy; and freedom from sexual

exploitation.

In addition to agreeing to eliminate discrimination against women by ‘any person, organisation or

enterprise’, States Parties agree to take appropriate measures ‘to modify or abolish existing laws,

regulations, customs and practices’ that discriminate against women. 25

The Committee that monitors the CEDAW has also brought particular attention to the issues

women face during times of con�ict, and the Committee has expressed concern for the multiple

levels of discrimination that minority women face. 26

Pamphlet No.4 of the UN Guide for Minorities outlines rights enshrined in the CEDAW that are


Article 5 obliges States to take ‘all appropriate measures [...] [t]o modify the social and

cultural patterns of conduct of men and women’ in order to eliminate ‘prejudices and

customary and all other practices which are based on the idea of the inferiority or the

superiority of either of the sexes or on stereotyped roles for men and women.’

Article 7 concerns the right of women to participate in public life and to hold public o�ce

(see also General Recommendation No.23).

Article 10 requires that educational programmes eliminate stereotyped concepts of the

roles of men and women.

Article 12 requires the elimination of discrimination against women with respect to access

to health care services (see also General Recommendation No.24).

25 CEDAW, articles 2(e) and 2(f). 26 See CEDAW, General Recommendation, No. 30 on women in con�ict prevention, con�ict and post-con�ict situations (2013). 27 ‘Minorities and the United Nations: Human Rights Treaty Bodies and Complaint Mechanisms’ (OHCHR) < http://www.ohchr.org/Documents/Publications/GuideMinorities4en.pdf > accessed 25 July 2016.


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Article 14 concerns the particular problems faced by rural women, many of whom may be

members of minorities.

Article 16 reiterates that women and men shall be equal in all matters related to marriage

and family, including the right to marry freely and only with full and free consent. It also

provides that no legal e�ect may be given to the betrothal or marriage of a child (see also

General Recommendation No.21).

Convention Against Torture (CAT)

Minority individuals, like all people, have the right to be protected against torture and other cruel,

inhuman, or degrading treatment or punishment.

Of particular note to stateless individuals, article 3, paragraph 1 of the CAT holds, ‘No State Party

shall expel, return ("refouler") or extradite a person to another State where there are substantial

grounds for believing that he would be in danger of being subjected to torture,’ where ‘the term

"torture" means any act by which severe pain or su�ering, whether physical or mental, is

intentionally in�icted on a person for such purposes as obtaining from him or a third person

information or a confession, punishing him for an act he or a third person has committed or is

suspected of having committed, or intimidating or coercing him or a third person, or for any

reason based on discrimination of any kind, when such pain or su�ering is in�icted by or at the

instigation of or with the consent or acquiescence of a public o�cial or other person acting in an

o�cial capacity.’ 28

ASEAN Human Rights Declaration

Drafted by the ASEAN Intergovernmental Commission on Human Rights in 2012, the Declaration

was unanimously adopted by ASEAN members (including Myanmar) at the November 2012

meeting in Phnom Penh. It a�rms all the civil, political, economic, social and cultural rights laid

out in the UDHR. Additionally, the Declaration sets out general principles (articles 1-9) that

emphasise equality before the law and non-discrimination based on race, gender, age, language,

religion, political or other opinion, national or social origin, economic status, birth, disability or

other status, as well as the right to an e�ective and enforceable remedy. Article 4 particularly

emphasises that the ‘rights of women, children, the elderly, persons with disabilities, migrant

workers, and vulnerable and marginalised groups are an inalienable, integral and indivisible part

of human rights and fundamental freedoms.’

The ASEAN Human Rights Declaration has no binding legal rami�cations and imposes no

additional enforcement mechanisms. It is merely a statement of belief or intent. The Declaration

also contains several caveats that limit the scope of the rights it a�rms. Article 6 sets out that

‘[t]he enjoyment of human rights and fundamental freedoms must be balanced with the

performance of corresponding duties,’ and article 7 holds that ‘the realisation of human rights

must be considered in the regional and national context bearing in mind di�erent political,

economic, legal, social, cultural, historical and religious backgrounds.’ Article 8 further holds that

28 CAT, article 1(1).


Pg 16 of 25

human rights are subject to limitations based on the ‘just requirements of national security, public

morality, as well as the general welfare of the peoples in a democratic society.’

Nevertheless the Declaration emphasises that the principles of impartiality, objectivity,

non-selectivity, non-discrimination, non-confrontation and avoidance of double standards and

politicisation should be upheld (article 9).


Pg 17 of 25

Question Presented

Is the right of minorities’ to self-identify on the basis of their national, ethnic, religious and

linguistic characteristics related to the obligation of States to ensure non-discrimination against

individuals and groups? How might such an obligation operate for members of the Rohingya

community in Myanmar who are denied citizenship rights?

Brief Answer

Yes, the right of minorities’ to self-identify on the basis of their national, ethnic, religious and

linguistic characteristics is related to the obligation of States to ensure non-discrimination against

individuals and groups. While minority rights to non-discrimination do not truly overlap with the

right to self-determination, the nature of minority identity requires the active protection and

facilitation of minority group identity, and international human rights law imposes positive

obligations on States parties accordingly. These right apply to all, regardless of legal status.

Discussion

1. The Right to Non-Discrimination

The right to non-discrimination on the basis of race, colour, sex, language, religion, political or

other opinion, national or social origin, property, birth or other status is enshrined in Articles 1 and

2 of the UDHR, in addition to Articles 2(1) and 26 of the ICCPR, and Article 2(2) of the ICESCR for all

persons within a State Party’s territory and subject to its jurisdiction.

The HRC has stated ‘that the term ‘discrimination’ as used in the Covenant should be understood

to imply any distinction, exclusion, restriction or preference which is based on any ground such as

race, colour, sex, language, religion, political or other opinion, national or social origin, property,

birth or other status, and which has the purpose or e�ect of nullifying or impairing the recognition,

enjoyment or exercise by all persons, on an equal footing, of all rights and freedoms.’ 29

However, as noted by the Committee, ‘the enjoyment of rights and freedoms on an equal footing

[...] does not mean identical treatment in every instance.’ When dealing with alleged violations of 30

article 26 in communications submitted under the Optional Protocol, the Committee has

con�rmed that the ‘right to equality before the law and equal protection of the law without any

discrimination, does not make all di�erences of treatment discriminatory. A di�erentiation based

on reasonable and objective criteria does not amount to prohibited discrimination within the

meaning of article 26.’ Di�erentiations are lawful provided they pursue a legitimate aim (like 31

a�rmative action), and are reasonable in light of this aim. 32

29 HRC, General Comment 18, Non-discrimination (1989), para 7. 30 HRC, General Comment 18, Non-discrimination (1989), para 8. 31 Communication No. 172/1984, S. W. M. Broeks v. the Netherlands (Views adopted on 9 April 1987), in UN doc. GAOR, A/42/40, p. 150, para 13. 32 See e.g. I-A Court HR, Proposed Amendments to the Naturalization Provisions of the Constitution of Costa Rica, Advisory Opinion OC-4/84 of January 19, 1984, Series A, No. 4, pp. 104-106, paras. 55-57; and Eur. Court


Pg 18 of 25

Additionally, it should be noted that the right to non-discrimination based on gender has added

protections that are only brie�y noted in this memo (See above, ‘Convention on the Elimination of

Discrimination Against Women’). A gendered perspective could provide an additional avenue to

address human rights abuses that have a speci�c impact on women in particular.

2. The Right to Self-Determination of Peoples

The right to self-determination of peoples, a fundamental principle of international law, is

enshrined in article 1 of the ICESCR and article 1 of the ICCPR. The ICCPR provides for the rights of

peoples to self-determination in addition to the right of ethnic, religious or linguistic minorities to

enjoy their own culture, to profess and practise their own religion or to use their own language. 33

The de�nition of ‘peoples’ remains ambiguous, but minorities groups are generally not considered

to properly �t within this term. In the Declaration on the Rights of Persons Belonging to National

or Ethnic, Religious and Linguistic Minorities, any mention of ‘self-determination’ is noticeably

avoided.

Nevertheless, article 1 imposes an obligations on States Parties to facilitate the realisation of and

respect for the right to self-determination, ‘not only in relation to their own peoples but also

vis-à-vis all peoples which have not been able to exercise or have been deprived of the possibility

of exercising their right to self-determination.’ In this way, self-determination can still be viewed 34

as a tool of last resort for minorities subject to signi�cant oppression and lack of representation.

Such an interpretation is echoed in the Vienna Declaration of 1993:

[The right to self-determination] shall not be constructed as authorising or encouraging

any action which could dismember or impair, totally or in part, the territorial integrity or

political unity of sovereign and independent States c onducting themselves in compliance

with the principle of equal rights and self-determination of peoples and thus possessed of a

Government representing the whole people belonging to the territory without distinction of

any kind. 35

This language may imply a remedial right of self-determination for oppressed peoples

Recent decisions in cases brought against Canada, Colombia, Italy, New Zealand, Namibia and

France have consolidated the Committee’s position that no claim for self-determination may be

brought under the Optional Protocol. But it has been noted that article 1 may be relevant in the 36

interpretation of other rights protected by the Covenant, in particular articles 25, 26 and 27. 37

HR, Case ‘relating to certain aspects of the laws on the use of languages in education in Belgium’ (Merits), judgment of 23 July 1968, Series A, No. 6, p. 33, para. 9. 33 CERD, General Recommendation No. 21: Right to self-determination (1996), para 2. 34 CCPR, General Comment No. 12: Article 1: Right to Self-determination (1984), para 6. 35 Vienna Declaration and Programme of Action, UN Doc A/CONF.157/23 (1993) (emphasis added). 36 Vid. Marshall et al. v. Canada, Communication No. 205/1986, Views adopted on 4 November 2006; E.P. et al. v. Colombia, Communication No. 318/1988, Views adopted on 25 July 1990; A.B. et al. v. Italy, Communication No. 413/1990, Views adopted on 5 November 1991; R.L. et al. v. Canada, Communication No. 358/1989, Views adopted on 2 November 1991. 37 Diergaardt et al. v. Namibia, Communication No. 760/1997, Views adopted on 25 July 2000; and Gillot et al. v. France, Communication No. 932/2000, Views adopted on 15 July 2002; Apirana Mahuika et al. v. New Zealand, Communication No. 547/1993, Views adopted on 20 October 2000.


Pg 19 of 25

3. Minority Rights Apply to Non-Citizens, with the Exception of Political Rights.

States Parties have an obligation to protect the rights of all those subject to their jurisdictions,

including stateless individuals, under both the ICCPR and the ICESCR, although express 38 39

exceptions are noted with regard to political rights under the ICERD. Regardless of this 40

exception, under the ICERD ‘di�erential treatment based on citizenship or immigration status will

constitute discrimination if the criteria for such di�erentiation, judged in the light of the objectives

and purposes of the Convention, are not applied pursuant to a legitimate aim, and are not

proportional to the achievement of this aim.’ 41

It is worth noting that the deprivation of citizenship because of national, ethnic, religious or

linguistic characteristics is contrary to international law. Article 9 of the 1961 Convention on the

Reduction of Statelessness states that ‘a Contracting State may not deprive any person or group

of persons of their nationality on racial, ethnic, religious or political grounds.’ In this way,

discrimination against a person based on one of these grounds resulting in the arbitrary

deprivation of nationality may help establish refugee status. See the Convention on the 42

Reduction of Statelessness for norms pertaining to statelessness.

It should also be noted that there are additional protections for individuals expelled from their

country other than the prohibition against refoulement in CAT. According to the HRC, the ICCPR’s

prohibition against torture in article 7 must be read to mean that States may not expose

individuals to the danger of torture or cruel, inhuman or degrading treatment by returning them to

another country via extradition, expulsion or refoulement. This position is also echoed by the 43

CERD Committee with regard speci�cally to non-citizens in General Comment No. 30, which

obliges States Parties to ensure non-citizens are not removed in a discriminatory manner on the

basis of race, colour or ethnic or national origin, to ensure that non-citizens are not subject to

collective expulsion, and to ensure that non-citizens are not removed to a country or territory

where there is a risk they will be subject to serious human rights abuses. 44

4. Protection for the Existence of Minorities Includes and Requires Respect and

Protection for their Religions, Cultural, and Linguistic Characters

The only obligatory norm regarding the preservation of minorities is Article 27 of the ICCPR, which

holds: ‘In those States in which ethnic, religious or linguistic minorities exist, persons belonging to

such minorities shall not be denied the right, in community with the other members of their group,

to enjoy their own culture, to profess and practise their own religion, or to use their own language.’

According to the HRC, the rights enjoyed under Article 27 of the Covenant are not to be confused

with the right of self-determination enshrined in Article 1 of the Covenant. Nevertheless, the 45

38 HRC, General Comment No. 15: The Position of Aliens Under the Covenant (1986), para 1;. 39 CESCR, General Comment No. 20: Non-discrimination in economic, social and cultural rights (2009), para 30. 40 CERD, General Recommendation XXX on Discrimination Against Non-Citizens (2002), para 3. 41 CERD, General Recommendation XXX on Discrimination Against Non-Citizens (2002), para 4. 42 See, ‘Minority Rights: International Standards and Guidance for Implementation’ (UN, 2010), p 5. 43 HRC, General Comment No. 20: Article 7 (1992), para 9. 44 CERD, General Recommendation XXX on Discrimination Against Non-Citizens (2002), paras 25-27. 45 HRC, General Comment No 23: Article 27 (1994), para 2.


Pg 20 of 25

individual rights protected under article 27 ‘depend [...] on the ability of the minority group to

maintain its culture, language or religion. Accordingly, positive measures by States may also be

necessary to protect the identity of a minority and the rights of its members to enjoy and develop

their culture and language and to practise their religion, in community with the other members of

the group.’ It should be noted that the rights enshrined in article 27 are conferred to individuals 46

(i.e. persons belonging to minority groups) and so are cognizable under the Optional Protocol to

the ICCPR. 47

The HRC has interpreted the scope of article 27 generously. According to their General Comment

No. 23, article 27 recognises a right, ‘which is conferred on individuals belonging to minority

groups and which is distinct from, and additional to, all the other rights which, as individuals in

common with everyone else, they are already entitled to enjoy under the Covenant.’ Further, 48

economic activity, as an essential element of the culture of an ethnic group, can fall within the

scope of cultural rights protected by article 27. The HRC also stated that the terms used in 49

article 27 indicate that persons who share a common religion, culture or language are to bene�t

from this protection and need not be citizens or permanent residents of the State Party. Thus, a 50

States Parties may not restrict the rights under article 27 to just citizens. 51

More recently, the 2001 Durban Declaration a�rms that ‘the ethnic, cultural, linguistic and religious

identity of minorities, where they exist, must be protected and that persons belonging to such

minorities should be treated equally and enjoy their human rights and fundamental freedoms

without discrimination of any kind.’ 52

The Committee on Economic, Social and Cultural Rights’ General Comment No. 21 highlights the

applicability of article 15.1(a) of the ICESCR on the right of everyone to take part in cultural life for

minority groups. It holds that States Parties are obliged to recognise, respect and protect minority

cultures as an essential component of the identity of the States themselves. 53

It is also worth noting that article 30 of the CRC provides that ‘in those States in which ethnic,

religious or linguistic minorities [...] exist, a child belonging to such a minority [...] shall not be

denied the right, in community with other members of his or her group, to enjoy his or her own

culture, to profess and practise his or her own religion, or to use his or her own language.’

5. Racial Discrimination and the Rights of Minorities to Self-Identify

Article 1 of the ICERD de�nes discrimination as ‘any distinction, exclusion, restriction or preference

based on race, colour, descent, or national or ethnic origin which has the purpose or e�ect of

46 HRC, General Comment No. 23: Article 27 (1994), para 6.2. 47 HRC, General Comment No. 23: Article 27 (1994), para 3.1. 48 HRC, General Comment No. 23: Article 27 (1994), para 1. 49 HRC, General Comment No. 23: Article 27 (1994), para 7; among others see Lubicon Lake Band v Canada, Communication No. 167/1984, Views adopted on 26 March 1990, para. 32.2; Kitok v Sweden, Communication No. 197/1985, Views adopted on 27 July 1988, para. 9.2; and Länsman et al v Finland, Communication No. 511/1992, Views adopted on 26 October 1994, para. 9.2. 50 HRC, General Comment No. 23: Article 27 (1994), paras 5.1 and 5.2. 51 HRC, General Comment No. 23: Article 27 (1994), para 5.1 52 Durban Declaration (2001), para 66. 53 CESCR, General comment No. 21, Right of everyone to take part in cultural life (2009), para 32.


Pg 21 of 25

nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights

and fundamental freedoms in the political, economic, social, cultural or any other �eld of public

life.’ Article 1(2) excludes actions by States Parties that di�erentiate between citizens and

non-citizens from this de�nition. Article 1(3) quali�es this exception, holding that, concerning

nationality, citizenship or naturalization, States Parties may not discriminate against any particular

nationality. The Committee notes that article 1(2) should not be read in such a way as to detract 54

from rights and freedoms recognised in other instruments, such as the UDHR, the ICESCR and the

ICCPR. In its General Recommendation No. 32, the Committee on the Elimination of Racial 55

Discrimination speci�ed that ‘the list of human rights to which the principle [of non-discrimination]

applies under the Convention is not closed and extends to any �eld of human rights regulated by

the public authorities in the State party […] to address racial discrimination “by any persons, group

or organization”.’ 56

54 CERD, General Recommendation XXX on Discrimination Against Non-Citizens (2002), para 1. 55 See, CERD, General Recommendation XXX on Discrimination Against Non-Citizens (2002), para 2. 56 CERD, General Recommendation No. 32, The meaning and scope of special measures in the International Convention on the Elimination of Racial Discrimination (2009), para 9.


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Further Information

Minority Rights UN, ‘Guide for Minorities’

< http://www.ohchr.org/EN/Issues/Minorities/Pages/MinoritiesGuide.aspx >.

UN, ‘Minority Rights: International Standards and Guidance for Implementation’ (2010) < http://www.ohchr.org/Documents/Publications/MinorityRights_en.pdf >.

Rohingya Rights

C4ADS, ‘Sticks and Stones: Hate Speech Narratives and Facilitators in Myanmar’ (2016)

< http://www.burmalibrary.org/docs22/Sticks+and+Stones.pdf >.

Penny Green, Thomas MacManus and Alicia de la Cour Venning, ‘Countdown to Annihilation:

Genocide in Myanmar’ (International State Crime Initiative, 2015)

< http://statecrime.org/data/2015/10/ISCI-Rohingya-Report-PUBLISHED-VERSION.pdf >.

Human Rights Watch, ‘“All You Can Do is Pray”; Crimes Against Humanity and Ethnic Cleansing of

Rohingya Muslims in Burma’s Arakan State’ (2013)

< https://www.hrw.org/report/2013/04/22/all-you-can-do-pray/crimes-against-humanity-and-

ethnic-cleansing-rohingya-muslims >.


Pg 23 of 25

http://www.ohchr.org/EN/Issues/Minorities/Pages/MinoritiesGuide.aspx

http://www.ohchr.org/Documents/Publications/MinorityRights_en.pdf

http://www.burmalibrary.org/docs22/Sticks+and+Stones.pdf

http://statecrime.org/data/2015/10/ISCI-Rohingya-Report-PUBLISHED-VERSION.pdf

https://www.hrw.org/report/2013/04/22/all-you-can-do-pray/crimes-against-humanity-and-ethnic-cleansing-rohingya-muslims

https://www.hrw.org/report/2013/04/22/all-you-can-do-pray/crimes-against-humanity-and-ethnic-cleansing-rohingya-muslims

Annex: International Jurisprudence

Non-Discrimination

CASE KEY TERMS

‘Belgian Linguistic’ case , European Court of Human Rights, 1968

Determining when discrimination has occurred.

L. k. v. The Netherlands , Committee on the Elimination of Racial Discrimination, 1993

Incitement to racial discrimination and acts of violence; obligation to investigate threats of racial violence.

Waldman v. Canada , Human Rights Committee, 1999

Violation of Article 26; public school funding; non-discrimination of state services.

Amnesty International v. Zambia , Human Rights Committee, 1999

NGO standing not questioned.

Habassi v. Denmark , Committee on the Elimination of Racial Discrimination, 1999

Private party discrimination; obligation to investigate; racial discrimination; denial of e�ective remedy.

Thlimmenos v. Greece , European Court of Human Rights, 2000

Right to freedom from discrimination; obligation to treat di�erent situations di�erently.

Koptova v. Slovakia , Committee on the Elimination of Racial Discrimination, 2000

Violation of article 5(d)(i) of ICERD; restricting right to shelter, discrimination against Roma.

Kashif Ahmad v. Denmark , Committee on the Elimination of Racial Discrimination, 2000

Hate speech, obligation to investigate; denial of e�ective remedy.

Dahlab v. Switzerland , European Court of Human Rights, 2001

Justi�ed restriction of right to manifest religion; proportionate measure to protect the freedom of others.

Juridical Condition and Rights of Undocumented Migrants . Advisory Opinion, Inter-American Court of Human Rights, 2003

Positive obligations to respect rights of undocumented; cannot subordinate or condition equality before the law or non-discrimination to achieve public policy goals.

Leyla Sahin v. Turkey , European Court of Human Rights, 2005

Freedom to manifest religion can be restricted on public-order grounds.

The Jewish Community of Oslo et al. v. Norway , Committee on the

Hate speech; incitement to racial discrimination; denial of e�ective remedy and protection.


Pg 24 of 25

Elimination of Racial Discrimination, 2005

D. H. and others v. The Czech Republic , European Court of Human Rights, 2007

Alleged de facto segregation; no violation of article 14.

Self-Determination

CASE KEY TERMS

Lubicon Lake Band v Canada (Ominayak case), Human Rights Committee, 1990

ICCPR Optional Protocol for claims of individual rights breaches, HRC can’t determine whether a group constitutes a ‘people.’

E. P. v Colombia , Human Rights Committee, 1990

Cannot claim under the Optional Protocol to be victims of a violation of the right of self-determination.

A. B. et al. v Italy , Human Rights Committee, 1990

Optional Protocol only for violations of individual rights; no claim for self-determination may be brought under the Optional Protocol 1.

Mahuika et al. (New Zealand) , Human Rights Committee, 1993

No violation for legislation that interfered with indigenous �shing; consultation with indigenous representatives.

Diergaardt et al v Namibia , Human Rights Committee, 2000

Violation of Article 26; language rights; no violation of article 27, de�ning cultural practices.

Äärelä and Näkkäläjärui v. Finland , Human Rights Committee, 2001

Interference with traditional cultural practice; no violation of article 27; proportion of interference; consultation with minority representatives.

Gillot et al. (New Caledonia) , Human Rights Committee, 2000

No violation, residency-based cut o� for independence referendum; objective grounds for di�erentiation.


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